August 8, 2012 - Will same-sex marriage become a basis for immigration sponsorship in the United States?

 Jane DeLeon, a Philippine immigrant recently filed a lawsuit against the U.S Department of Homeland Security.  Ms. DeLeon argued that the federal Defense of Marriage Act (DOMA) is unconstitutional since it defines marriage as the union of a man and a woman.  

Ms. DeLeon is seeking a legal right to remain in the United States based on her same-sex marriage to her American spouse, Irma Rodriguez.   Had she been married to a man, her husband would be able to sponsor her for a green card. However, since she is married to a U.S. citizen of the same-sex, she is unable, based on current immigration laws, to be sponsored for a green card through that relationship.

Despite President Obama's statements that he considered DOMA unconstitutional, the lawsuit faults the Obama administration for taking a passive stance on the issue. Currently, the administration permits a case-by-case review of removal cases involving same-sex couples.  The lawsuit argues that if a hold were placed on all removal cases involving same-sex couples, it would result in the expedited review of DOMA's constitutionality.  President Obama's recent announcement on deferred action for undocumented youth may have inspired this lawsuit based on the comments of Peter Schey, the lead attorney for DeLeon, who was quoted as saying:
"Our immediate concern is with the failure of the administration to implement a policy to provide protection from deportation for immigrants in same-sex marriages, as they've done recently for undocumented youth."
This case, however, is not the first time the constitutionality of DOMA has been called into question.  On May 31, 2012, DOMA was found by a federal appeals court in Boston to have unconstitutionally denied federal benefits to lawfully married same-sex couples.  And, despite the definition of a marriage as per DOMA, six states and the District of Columbia nonetheless allow same-sex marriage.  And while this lawsuit is in its early stages, its importance should not be downplayed, since it may lay a foundation to determine whether same-sex couples will one day attain the same immigration rights as heterosexual couples. 

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